As businesses reopen and long-term care facilities continue to fight the COVID-19 virus, the threat of bankruptcy by lawsuit remains a troubling problem. Existing laws provide little clarity or protection for a small business owner striving to operate safely or a nursing home making its best effort to protect residents and workers. Clear standards around liability for businesses and health care operators are a critical piece of jumpstarting our economy.
Here are a few ways lawmakers can establish clear guidelines that protect good actors and hold bad actors accountable.
1. Grant Civil and Criminal Immunity: HB 2384 (Rep. Keefer), awaiting action since April 16, would protect businesses reopening to the public and not causing harm by ensuring immunity from civil and criminal liability during a disaster declaration. It also protects businesses from the imposition of administrative sanctions. That includes sanctions from a professional or occupational licensing board or commission.
2. Protect Businesses Following CDC Guidelines: Another approach is basing the liability immunity on adherence to the Centers for Disease Control’s guidelines for workplace safety. Those operating within the prescribed guidelines should be presumed to have taken reasonable precautions.
3. Prevent No-Injury Lawsuits: Legislators can deter coronavirus lawsuits that will strain and even destroy employers by preventing civil actions where the plaintiff did not experience a serious physical injury or death.
4. A Gross Negligence Standard for Nursing Homes: For nursing homes, legislation can apply a gross negligence standard when the act or omission occurred in the course of providing medical services in good faith in response to COVID-19. A gross negligence standard is common in state statutes for the purpose of protecting Good Samaritans or others who provide aid in an emergency or on a voluntary basis. Alternatively, the legislation could also impose liability for deliberately reckless conduct, or evidence of deliberate indifference to a resident’s health or safety.
5. Always Prepared: Pennsylvania can permanently suspend unnecessary licensing regulations and provide liability protections for healthcare workers in a future emergency declaration. This requires an amendment to the emergency powers law. The federal PREP Act provides a model. It authorizes the Secretary of the Department of Health and Human Services to issue a declaration that provides immunity from liability (except for willful misconduct) to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of “qualified countermeasures” for claims of loss caused, arising out of, relating to, or resulting from the administration or use of the countermeasure.
At least 15 states have already guaranteed civil immunity to health care professionals who are putting themselves at risk. It’s time for Pennsylvania to give all workers the protection the need to revive our economy and create a better Pennsylvania.
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